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Monday, January 18, 2016

Newsflash – DHS Amends Regulations for Certain EB-1 Immigrants and H-1B1, E-3, and CW-1 Nonimmigrants


On Friday, January 15, 2016, the Department of Homeland Security (DHS) revised regulations affecting H-1B1, E-3, and CW-1 nonimmigrant workers, as well as certain employment-based first preference (EB-1) immigrants.  The revisions will take effect on February 16, 2016 and will remove hurdles that place these workers at a disadvantage when compared to other similarly situated workers in different visa classifications.  According to the final rule posted to the Federal Register, the regulations will be amended as follows:
  • DHS is authorizing continued employment with the same employer for up to 240 days for H-1B1 and principal E-3 nonimmigrants whose status has expired while their employer’s timely filed extension of stay request remains pending.
  • Existing regulations on the filing procedures for extensions of stay and change of status requests now include principal E-3 and H-1B1 nonimmigrant classifications.
  • DHS is confirming that H-1B1 and principal E-3 classifications are included in the list of classes of foreign nationals authorized for employment incident to status with a specific employer. The regulation codifies the current practice of allowing H-1B1 and principal E-3 nonimmigrants to work for the sponsoring employer without having to separately apply for employment authorization.
  • Employers petitioning for EB-1 outstanding professors and researchers may now submit initial evidence comparable to the other forms of evidence already listed in 8 CFR 204.5(i)(3)(i), much like certain employment-based immigrant categories that already allow for submission of comparable evidence. 
  • DHS is providing this same continued employment authorization for CW-1 nonimmigrants whose status has expired while their employer’s timely filed Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, request for an extension of stay remains pending. 
DHS has confirmed that the final rule will not impose any additional costs on employers, workers, or other government entities, and will help to minimize the potential of employment disruptions for H-1B1, E-3, and CW-1 workers.  It is also expected that the new regulations will assist U.S. employers in recruiting EB-1 outstanding professors and researchers.

For more information, please see the related USCIS alert here.

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